Textualism might give the court some useful definitions, but it is after all still called, quite literally, an opinion.
Textualism might give the court some useful definitions, but it is after all still called, quite literally, an opinion.
Another example that highlights the distinction: Justice Gorsuch, one of the Supreme Court's preeminent textualists, is also one of the biggest proponents of criminal rights. Those cases similarly involve defining the contours of pre-existing legal concepts, such as "unreasonable search or seizure." Nobody denies that such questions are subjective--in referring to what's "unreasonable," the text itself calls for a subjective analysis.
Textualism in modern context is a tool used by conservative justices used to uphold laws that serve business interests and conservative causes.
No, that just highlights the hypocritical picking-and-choosing they do to justify it. Gorsuch is a textualist when he wants to be, just like the others.
Common law is basically just the US, UK, AU, and NZ. Outside the anglosphere it's mostly civil law.
[0] https://en.m.wikipedia.org/wiki/Common_law
[1] https://en.m.wikipedia.org/wiki/Civil_law_(legal_system)
I guess civil law gives you less room to explore ideas like "living" statutes and laws that gain and change meaning over time; if there was such a change, you'd write it down?
Regardless: whether you're a textualist or realist, in the US you're still operating in a common law system.
> What American lawyers call "textualism" is how most continental european courts interpret written laws.
They were making a direct comparison between "textualism" and civil law, but didn't include the terms. I found the comparison interesting and thought I'd make it easier for anyone else who was confused by OP's comparison.
I realize on re-reading that this comparison is much less prominent than I thought it was in OP's comment, so it makes sense that my links would seem out of place. An explicit quote of that sentence would have helped.
Much of the decision is indeed based around an analysis of the words written by the legislature.
For example, Chinese nationals can enter our country and gather information on our infrastructure, corporations, and people with relative ease because English is prevalent, and foreign nationals have, with the exception of certain military/research areas, the same access that US citizens have. On the other hand, foreign nationals in China are closely monitored and have very few rights, assuming they know Chinese, are physically in China (Great Firewall), and know how to get around in the first place.
China has unfettered access to our media ecosystem, research, patents, etc., and they do their best to create an uncompetitive/hostile environment for any other country to attempt the same on their territory. Some of this has to do with trade—to be fair, these are intertwined—but the situation regarding intelligence is bleak.
>[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
This is foreign commerce. It falls under the explicit jurisdiction of Congress.
However, this case is about something else. The opinion states that there is a first amendment interest, but that interest is secondary to a compelling national security interest that, in the court’s view, is valid. That may or may not be correct - but it is a subjective interpretation.
Yeah, it's the perhaps most powerful clause in the constitution. A large number of laws are formed like "[actual law ...] in commerce." That is the hook needed for a lot of laws to be constitutional. Technically those laws only apply to interstate or international commerce.
There are even supreme court cases discussing this:
>Congress uses different modifiers to the word “commerce” in the design and enactment of its statutes. The phrase “affecting commerce” indicates Congress’ intent to regulate to the outer limits of its authority under the Commerce Clause. [...] Considering the usual meaning of the word “involving,” and the pro-arbitration purposes of the FAA, Allied-Bruce held the “word ‘involving,’ like ‘affecting,’ signals an intent to exercise Congress’ commerce power to the full.” Ibid. Unlike those phrases, however, the general words “in commerce” and the specific phrase “engaged in commerce” are understood to have a more limited reach. In Allied-Bruce itself the Court said the words “in commerce” are “oftenfound words of art” [...] The Court’s reluctance to accept contentions that Congress used the words “in commerce” or “engaged in commerce” to regulate to the full extent of its commerce power rests on sound foundation, as it affords objective and consistent significance to the meaning of the words Congress uses when it defines the reach of a statute.[0]
[0] Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) https://supreme.justia.com/cases/federal/us/532/105/case.pdf
Only because the Court wants it to be, so they can play Calvinball.
Marijuana grown, sold, and consumed entirely within one state? Still interstate commerce! https://en.wikipedia.org/wiki/Gonzales_v._Raich
To act as a catch all override clause to allow for federal intervention anywhere really important.
It's worth noting that many conservative lawyers and activists have been calling for a more limited interpretation of interstate commerce, as a way of shifting power away from Congress to individual states.
I know there's court precedent, but corporations aren't people. It's yet another Chinese platform that Americans use to communicate with other western companies.
Corporate personhood is irrelevant to this case.
> Corporate personhood is irrelevant to this case.
Further more, "Corporations are people" implying corporations have rights isn't related to corporate personhood and is based on a (often deliberate by opposing politicians) misinterpretation of the phrase, as spoken by Mitt Romney.
What Romney was saying and what is true when he said "Corporations are people" is confusing because people interpret it as "Corporations are persons" which is not what he, or the case law he was referring to implied. The singular of the phrase is much more clear, a corporation is people.
The whole case was about a group of people pooling their funds to make a movie about Hilary Clinton being bad and the court found that the people still had free speech rights when acting through a corporation to pool their funds and so political donation limits didn't apply as long as no political campaign was involved. Hence, Super PACs having to say that the campaigns their supporting aren't involved with the campaigns.
It's actually an incredibly complicated and nuanced situation and the decision is equally so.
You can’t marry a child or your cousin (in most states), that doesn’t mean they aren’t people.
Isn't that obviously foreign commerce?
>We granted certiorari to decide whether the Act, as applied to petitioners, violates the First Amendment.
That might be technically true, but if (1) you're the lawyer representing a party in an important case, (2) you've already appealed that case up to the highest appelate court and lost, and (3) you think there's any chance that the Supreme Court might change the ruling in your favor, then wouldn't it basically be professional malpractice to not petition for certiorari? Of course, they only accept a tiny percentage of the petitions they receive.
Because obviously changing the owner-editor of a media outlet has everything to do with their editorial policy. The SCOTUS just said that censorship is ok (and forcing the change of the editor is censorship, there is no doubt about it), as long as it's against another state's editorial preferences potentially having a significant audience in the country.
It obviously doesn't. That would mean the US Government can ban all foreign press, just by designating countries as "foreign adversaries". And "foreign adversaries" is a euphemism for "countries that don't submit". The SCOTUS just invented another exception to the absolutist interpretation.
>wholly uncontroversial indictments of the owners of Tenet Media
>were charged with failing to register as a foreign agent
This entire narrative together with the banning of Tiktok is wholly hypocritical, given the American media, tech, and NGO's influence/dominance around the world.
The moment someone achieved what the American entities have been doing around the world, the non-stop wailing of "foreign adversaries this, foreign adversaries that" started.
Meanwhile in Georgia, a country bordering Russia, the law requiring foreign-financed NGOs to register was declared to "stigmatize organizations that serve the citizens of Georgia" with accompanying travel bans for the authoritarian evil doers who passed said law by the US state department.
>Petitioners argue that such a ban will burden various First Amendment activities, including content moderation, content generation, access to a distinct medium for expression, association with another speaker or preferred editor, and receipt of information and ideas.
Sotomayor expands on this in her concurrence:
>TikTok engages in expressive activity by “compiling and curating” material on its platform. Laws that “impose a disproportionate burden” upon those engaged in expressive activity are subject to heightened scrutiny under the First Amendment. The challenged Act plainly imposes such a burden: It bars any entity from distributing TikTok’s speech in the United States, unless TikTok undergoes a qualified divestiture. The Act, moreover, effectively prohibits TikTok from collaborating with certain entities regarding its “content recommendation algorithm” even following a qualified divestiture. And the Act implicates content creators’ “right to associate” with their preferred publisher “for the purpose of speaking.”
SCOTUS didn't have much to work with aside from level of scrutiny. They defer to Congress regarding national security.
I think it's understandable, in a Chesterton's Fence sort of way - they better make sure that if they're going to start using a new methodology, it works better than what they use now, (these weird judge-created levels of scrutiny), but there's so much 1A precedent that is hard to be confident.
For 2nd amendment, they have used 'originalism' already. There isn't nearly as much precedent in that area, and so they were able to start more or less from scratch.
I keep seeing this claimed, but these aren't hypothetical risks. China has managerial control over ByteDance. China has laws that require prominent companies to cooperate in their national security operations, and they've recently strengthened them even more. China has already exercised those powers to target political dissidents. This is the normal state of affairs in Chinese business; this is how things work there. It isn't like the west where companies have power to push back, or enjoy managerial independence.
But China is a bit different in that they don't simply have the authority to request data, they have the authority to direct management of the company.
Regardless, "someone associated with the government got a job at your company" is entirely different in consequence than "the government requires you to have government interests on your board"
I don't think you understand SCOTUS' decision here. They are not banning TikTok. Congress is doing so (actually forcing a sale of TikTok or be banned). They are simply ruling whether Congress acted unconstitutionally by doing so. In other words, if they overrule Congress, they would have to show how Congress' ruling contravenes the Constitution, when the Constitution grants Congress the authority to regulate commerce and decide matters of national security.
What changed now?
Even a judge, Sotomayer said during this case that yes, the Government can say to someone that their speech is not allowed.
Looks like a major erosion of first amendment protections.
Lmao these people are rubes. It's like every other bs "national security" argument.
Expect Yandex, VK, RT, Sputnik, SCMP, etc. to be banned as well under similar pretenses.
"Comrades! We can not let these Western dogs infect our proud Soviet minds with this 'Radio Free Europe'!"
> Looks like a major erosion of first amendment protections.
It's not an erosion because it was already true and has been true for centuries.
Legal precedent holds that source code (the expressive part of software) is speech, but that executing software (the functional part) is not speech. Even when the operation conveys speech, the ban is on the functional operation of the software, so the First Amendment doesn't apply.
Isn't the inquiry made MORE subjective by incorporating extratextual considerations?
Or do you just mean that textualism is oversold, and delivers less than it advertises?
First, the court was not asked to reconsider the meaning of the First Amendment. In the US, we generally hew to the rule of "party presentation," which generally provides that courts will consider the parties' arguments, not make up new ones on their own.
TikTok's claim was that application of the statute in question to it violated the First Amendment's clause that "Congress shall make no law...abridging the freedom of speech." The Supreme Court has considered the interpretation and application of that clause in...well, a whole lot of cases. TikTok asked the court to apply the logic of certain of those precedents to rule in its favor and enjoin the statute. It did not, however, ask the court to reconsider those precedents or interpret the First Amendment anew.
Since the court was not asked to do so, it's no surprise that it didn't.
Second, as noted, the court has literally decades' worth of cases fleshing out the meaning of this clause and applying it in particular circumstances. Every textualist, so far as I'm aware, generally supports following the court's existing precedents interpreting the Constitution unless and until they are overruled.
Third, even if one is of the view that the Court ought to consider the text anew in every case, without deferring to its prior rulings interpreting the text, this would have been a particularly inappropriate case for it to do so. A party seeking an injunction, as TikTok was, has to show a strong likelihood of success on the merits. That generally entails showing that you win under existing precedent. A court's expedited consideration of a request for preliminary relief is not an appropriate time to broach a new theory of what the law requires. The court doesn't have the time to give it the consideration required, and asking the court to abrogate its precedents is inconsistent with the standard for a preliminary injunction, which contemplates only a preview of the ultimate legal question, not a full-blown resolution of it.
Fourth, what exactly was the court supposed to do with the text in question, which is "abridging the freedom of speech"? The question here is whether the statute here, as applied to TikTok, violates that text. Well, it depends on what "the freedom of speech" means and perhaps what "abridging" means. It's only natural that a court would look to precedent in answering the question. Precedent develops over time, fleshing out (or "liquidating," to use Madison's term) the meaning and application of ambiguous or general language. Absent some compelling argument that precedent got the meaning wrong, that sort of case-by-case development of the law is how our courts have always functioned--and may be, according to some scholars, itself a requirement of originalism.